In re T.S.

Filed 1/26/07 In re T.S. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Christopher J. Sheldon, Judge. Affirmed.

Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.

Janette Freeman Cochran, under appointment by the Court of Appeal, for Minor.

S.L.^[1](hereafter father) appeals from the trial courts order terminating his parental rights to his then nine-year-old daughter, T.S. The only issue in this appeal is whether that order should be reversed because the trial court failed to conduct an adequate inquiry to determine whether father has Indian ancestry and as a result failed to demonstrate compliance with the notice requirements of the Indian Child Welfare Act (hereafter ICWA; 25 U.S.C. 1901 et seq.). We conclude the trial court conducted an adequate inquiry. Therefore we will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Riverside County Child Protective Services detained T.S. and her three half siblings on November 8, 2004, after mother reported to a social worker that she was using methamphetamine and could not handle her children. Mother also reported that father is the biological father of T.S. although father has never played a role in the childs life and has had only one contact with T.S. The trial court appointed counsel for father at the detention hearing on November 10, 2004, although father did not appear at that or any other hearing in this matter because he is in prison.^[2] Because father was incarcerated and would not be released from prison until April 2009, the trial court denied reunification services to him at the December 7, 2004, jurisdiction hearing. At a Welfare and Institutions Code section 366.26 hearing on April 12, 2006, the trial court terminated fathers parental rights to T.S.

DISCUSSION

Fathers only contention in this appeal is that the Department of Public Social Services (DPSS) did not comply with the trial courts directive to inquire whether father has any Native American ancestry. Absent such inquiry, father contends that the trial courts finding that the ICWA does not apply is not supported by the evidence in this case. We disagree.

The dependency petition was filed on November 10, 2004. The boxes on the petition pertinent to tribal membership and Indian ancestry are not checked. In the report prepared for the detention hearing on November 12, 2004, the social worker stated that the ICWA might apply because the social worker was unable to obtain information from the mother regarding Native American ancestry. At the detention hearing, the trial court found that the ICWA does not apply to mother but that the court and DPSS will have to inquire as to father because he was not present in court.^[3]

In the report prepared for the combined jurisdiction and disposition hearing on December 7, 2004, the social worker stated, It appears that [the ICWA] does not apply. [The father of the three other children] has denied any Native American Ancestry and on 11/12/04 the Court found that [the ICWA] does not apply. However, no information has been obtained from [father] regarding any possible Native American Ancestry. In the next report, prepared for the six-month review hearing on June 23, 2005, the social worker reported that the ICWA does not apply. In that same report the social worker stated that this case was assigned to her on December 20, 2004, and that she has not had any contact with father [d]uring this review period because he remains incarcerated in state prison. In the report prepared for the selection and implementation hearing the social worker stated that the ICWA does not apply.

The issues father raises in this appeal are nearly identical to those raised by the appellant father and rejected by this court in In re Rebecca R. (2006) 143 Cal.App.4th 1426 (Rebecca R.).^[4] Accordingly, we will quote liberally from that opinion. Like the father in Rebecca R., father in this case relies on the version of rule 1439(d) of the California Rules of Court that became effective on January 1, 2005,^[5]to support his assertion that the trial court and DPSS failed to comply with their respective duties to inquire into fathers Indian ancestry. This dependency was initiated in November 2004. The detention and combined jurisdiction and disposition hearings were also held in 2004, before the amended version of former California Rules of Court, rule 1439(d) (now rule 5.664(d)) became effective. Consequently, the record does not include form JV-130 because that form did not exist at the time this dependency was initiated or at the time the detention, jurisdiction, and disposition hearings were held.

As we did in Rebecca R., we construe fathers claim in this appeal as a challenge to the sufficiency of the evidence to show that the trial court and DPSS complied with their duty of inquiry and thus to support the trial courts finding that the ICWA does not apply. We review factual findings in the light most favorable to the trial courts order. (Rebecca R., supra, 143 Cal.App.4th at p. 1430, citing In re Misako R. (1991) 2 Cal.App.4th 538, 545.) Viewed as a whole the record in this appeal shows that the duty of inquiry was satisfied.

As noted above, the trial court directed DPSS at the detention hearing to inquire into fathers Indian ancestry. In doing so, the trial court complied with its duty to inquire about Indian ancestry at the earliest point in the proceeding. The social worker acknowledged in the report prepared for the combined jurisdiction and disposition hearing on December 7, 2004, that although the ICWA does not apply to mother or the father of the three other children, the social worker had not yet obtained information from father regarding his Indian ancestry. In the report prepared for the six-month review hearing on June 23, 2005, the social worker stated that the ICWA does not apply. In that same report, however, the social worker acknowledged that the case was assigned to her on December 20, 2004, and that she has not had any contact with father [d]uring this review period because he remains incarcerated in state prison. Implicit in that statement is the acknowledgment that the social worker had not contacted father and did not have information on his Indian ancestry. Therefore, the social workers statement that the ICWA does not apply can only pertain to mother and the father of the other children and does not apply to father.

In the report prepared for the selection and implementation hearing the social worker stated that the ICWA does not apply. There is no other fact set out in the social workers selection and implementation hearing report that is inconsistent with this statement and therefore there is no reason for this court to believe that DPSS did not fulfill its duty to inquire regarding fathers Indian ancestry. Because there is no contrary evidence, we must presume that DPSS performed its duty and determined that father does not have Indian ancestry. (See Evid. Code, 664, which creates a presumption that official duty has been regularly performed.)

But even if we were to conclude otherwise, we nevertheless would reject fathers claim because father has not demonstrated that the claimed oversight resulted in a miscarriage of justice that in turn would require reversal of the order terminating his parental rights. Like the father in Rebecca R., father here complains that DPSS did not ask him about his Indian heritage. But, as we stated in Rebecca R., there can be no prejudice unless, if he had been asked, father would have indicated that the child did (or may) have such ancestry. (Rebecca R., supra, 143 Cal.App.4th at p. 1431.) Father did not make that representation in the trial court and does not make it in this appeal. By his silence we can conclude, first, that father has forfeited his ICWA claim because he did not raise it in the trial court and, second, that T.S. does not in fact have any Indian ancestry.

In short, we conclude here as we did in Rebecca R. that, in the absence of a representation by father that the child does or may have Indian ancestry, this appeal amounts to nothing more than trifling with the courts. (Rebecca R., supra, 143 Cal.App.4th at p. 1431, citing People v. Beebe (1989) 216 Cal.App.3d 927, 932.) We will not recite the complete criticism from Rebecca R. because counsel is, or should be, familiar with it, although he apparently has not taken the admonition to heart. The inference that this appeal is meritless, if not actually frivolous, is even greater than in Rebecca R. because counsel urges an outright reversal of the order terminating fathers parental rights rather than limited remand to address the ICWA issue. Counsel cites the principle that dependency matters are fluid and therefore circumstances must be assessed based on the facts that actually exist rather than on the facts that existed at the time of the challenged order. We do not quarrel with the principle. But it has no application in this case because father is in prison and will not be released for at least two more years. Fathers circumstance is not fluid; it is set in concrete for the foreseeable future and therefore nothing can be achieved by reversing the order terminating his parental rights.

For each of the reasons discussed, we conclude fathers claim is meritless.

DISPOSITION

The order terminating fathers parental rights is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Hollenhorst

Acting P.J.

/s/ Richli

J.

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^[1]Father is incorrectly identified in the trial court caption and referred to on appeal as L.S. According to the dependency petition, fathers name is S.L.

^[2]Father apparently waived his right to be present at hearings.

^[3]The pertinent minute order states that the ICWA does not apply. That entry is correct with regard to mother and the father of the three other children. It is incorrect with respect to T.S. and father.

^[4]Counsel for father in this appeal also represented the father in Rebecca R.

^[5]Former California Rules of Court, rule 1439(d) (now rule 5.664(d)) provides that both the trial court and DPSS have an affirmative and continuing duty to inquire whether a [dependent] child . . . is or may be an Indian child. Former rule 1429(d)(2) (now rule 5.664(d)(2)) states that the social worker must ask . . . the parents . . . whether the child may be an Indian child or may have Indian ancestors. Former rule 1439(d)(3) (now rule 5.664(d)(3)) provides: At the first appearance by a parent or guardian in any dependency case . . . the parent . . . must be ordered to complete form JV-130, Parental Notification of Indian Status.